Introduction to FOIA

Introduction to FOIA: WHAT CAN FOIA DO FOR YOU?

The
Freedom of Information Act (FOIA), 5 U.S.C. § 552, makes almost
every record possessed by a federal agency disclosable to the public
unless it is specifically exempted from disclosure or excluded from
the Act's coverage. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136
(1975). The Act provides that any person has a right which is enforceable
in federal court, to maintain access to records of any federal agency,
except for those documents which are exempt from disclosure by one of
nine specific exemptions. This outline sets forth the manner by which
a person with no legal training may gain access to the workings of the
agencies of the government of the United States by means of the mechanisms
of FOIA. A successful FOIA requester will always remember and incorporate
the following simple rules:

Whenever you speak with agency personnel on the telephone, get their
name and make sure that they know you are writing it down (e.g. ask
for proper spellings, etc.),

Whenever you speak with agency personnel on the telephone, send
them a quick letter memorializing the points covered and request that
they immediately inform you in writing if your recollection of the
conversation is incorrect, and

Make, and hang on to, copies of all correspondence involving your
case.

These surprisingly elementary points are fundamental to establishing the
groundwork of a successful FOIA request but are often surprisingly overlooked
by otherwise savvy activists. The result being that documents which should
be disclosed are not, cases which should be won, are lost.

"The
words of a statute [FOIA] are, of course, dead weights unless animated
by the purpose of the statute. The purpose of this statute is to
shed light "on an agency's performance of its statutory duties."

United
States Department of Justice v. Reporters Committee For Freedom
Of The Press, 489 U.S. 749, 772-73 (1989).

The FOIA creates the presumption that records in the
possession of agencies and departments of the executive branch of the
U.S. Government are accessible. Before the FOIA became law on July 4,
1966, the burden was on the requester to establish a right to examine
government records. Moreover, there were no statutory guidelines or procedures
in place to help a person seeking information as was there no provision
for judicial review for those denied access. When FOIA was signed into
law, the burden of proof shifted from the individual to the government.
Those seeking information were no longer required to show a need for information.
Instead, the "need to know'" standard was replaced by a "right to know'"
doctrine. The government now has the burden to justify a need for secrecy
in order to withhold requested information. The FOIA sets standards for
determining which records must be disclosed and which records may be withheld.
The law also provides administrative and judicial remedies for those denied
access to records. Above all, the law requires Federal agencies to provide
the fullest possible disclosure of information to the public.

The crux of FOIA is to make Federal agencies accountable
for information disclosure policies and practices. While the Act does
not grant an absolute right to examine government documents, it does
establish the right to request records and to receive a response to
the request. If a record cannot be released, the requester is entitled
to be formally advised of the reason for the denial. The requester also
has a right to appeal the denial and, if necessary, to challenge it
in court. Consequently, access to information of the Federal Government
can no longer be controlled by arbitrary or unreviewable actions of
a hidden bureaucracy.

It will serve you well to remember that should
you be confronted by an obstructionist bureaucrat who is clearly not
going to provide you with materials to which you feel you are lawfully
entitled, do not argue or quarrel. Rather, in such a situation the best
retort (because it is the response most likely to ensure your ultimate
access to the desired information) is to do everything you can to ensure
that you have created an adequate record for review at the next level
as afforded by FOIA. You are not likely to accomplish anything productive
if you fall into an argumentative posture with the agency and you will
probably tarnish the administrative record which you require to win
on appeal.

To be fair, the role of the agency FOIA staffer
is not always as straightforward as one would hope. As accurately reflected
in "FOIA Update," a publication of the U.S. Department of Justice:

Administering FOIA requires making determinations of fact,
law, and policy. To do this adequately is sometimes a large or complex
task, especially when requests are for records that may be numerous
or sensitive. Difficulties are often magnified by new or conflicting
court decisions; by gaps in an agency's knowledge, resources, organization,
or training; by a need to involve other agencies; or by a need to reconcile
divergent policies.

FOIA Update, Vol. I, No. 1, Autumn 1979. Correspondingly, it is usually
appropriate to give the agency the benefit of the doubt the first time
you encounter a problem in regard to your request. In that situation,
we recommend that you do what you can to work with the agency to facilitate
resolution of the problem. However, if you continue to encounter resistance,
it is probably safe to assume that the real obstacle is intentional
agency opposition to disclosure and you should then do everything you
can to make a good record for review.

The most recent amendments to the Act occurred
though "The Electronic Freedom of Information Act Amendments of 1996."
These revisions have the potential to create some of the most far-ranging
impacts upon the transparency of our federal government since the Act
was first signed into law. Primarily, as the name of the amendments
suggest, the congressional intent was to force agencies to open a great
majority of their records to automated access via the electronic phenomenon
of the 1990's; the Internet. Congress found that "Government agencies
increasingly use computers to conduct agency business and to store publicly
valuable agency records and information; and . . . Government agencies
should use new technology to enhance public access to agency records
and information." See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(a)(1996).
Accordingly, if you have access to a computer with a modem and a web-browser,
you may now get information from an agency's site on the Internet which
previously required the time and difficulty of submitting a written
FOIA request. However, not all of the agencies have complied with the
mandates set forth in the amendments as well as required by law and
there is also a significant variability in the quality and "user-friendliness"
of the differing sites. These issues will be discussed below in more
detail.

FOIA, 5 U.S.C. § 552, et seq., enacted on July 4, 1966, the
Act established for the first time, a statutory right of access to
almost all federal agency records.

FOIA is unique in the world for effectuating the concept of
public disclosure of internal governmental operations.

FOIA applies to any "agency records" which are documents which
are (1) either created or obtained by an agency, and (2) under
agency control at the time of the FOIA request. U.S. Dep't of
Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). The 1996
amendments to FOIA explicitly indicate that the term "record"
and any other term used in FOIA in reference to information, should
"include any information that would be an agency record subject
to the requirements of this section when maintained by an agency
in any format, including an electronic format." 5 U.S.C. § 552(f)(2).

(a) Note that the second prong of this analysis means
that the agency is not required to affirmatively produce documents
which do not exist at the time of the FOIA request, e.g., an agency
is not required to draft a summary of data which it may possess,
even though the data itself might be disclosable under FOIA.

One of the goals implemented by the passage of
the Act in 1966 was to ensure transparency in the governance of our
country. The only mechanism by which we can assure governmental integrity
is to have a clear understanding of what government is doing. Getting
documents and other valuable information from the government is usually
a crucial component in the resolution of any problem involving the operations
or activities of the federal bureaucracy or those it does business with.
The FOIA is the best manner of access to significant resources of information
which would not otherwise be available to the public. For example, activists
Paul Merrell and Carol Van Strum broke the story for Greenpeace that
paper mills using chlorine to bleach their pulp were discharging dioxin
into the waters of our country and the fact that the EPA was aware of
this, yet remained silent.

You-whether you are a trained lawyer, a law student
or just someone with an interest in ensuring that our government operate
in the open-can use the Act to expose all nature of the machinations
of power in our country.

You can use the Act to illuminate, and to subject to public scrutiny,
those records which concern controversial political and policy issues.

(a) EPA v. Mink, 410 U.S. 73, 75 (1973). Members of Congress sought
public disclosure of documents transmitted to President relating
to underground nuclear testing. Request failed because of "secret"
nature of documents.

You can use the Act to ensure agency performance of statutory responsibilities
or expose governmental wrongdoing.

(a) FBI v. Abramson, 456 U.S. 615, 618 (1982). Journalist
requested materials to disclose extent to which Nixon may have used
the FBI to obtain derogatory information about political opponents
of the White House.

(b) Int'l B. Elec. Workers Local 41 v. HUD, 763 F2d 435 (D.C.
Cir. 1985). Union requested payroll reports submitted by nonunion
contractor to protect its members from unfair and unlawful competition.
Court stated, "the purpose of FOIA is to permit the public to decide
for itself whether government action is proper." (emphasis
in original).

(c) Allen v. CIA, 636 F.2d 1287, 1288-1300 (D.C. Cir. 1980).
Request for CIA records to determine extent to which agency may
have had a role in either the assassination of President Kennedy
or obstructed investigations into the assassination.

(b) Agency must publish in Federal Register "substantive rules of
general applicability . . . statements of general policy or interpretations
of general applicability formulated and adopted by the agency. . .
. Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be required to
resort to, or be adversely affected by, a matter required to be published
in the Federal Register and not so published." 5 U.S.C. § 552(a)(1)(D).

(c) Examples of use of FOIA publishing requirement to invalidate agency
action:

(1) Morton v. Ruiz, 415 U.S. 199, 232-235 (1974). BIA
rules establishing standards of eligibility for general assistance
to Native Americans stuck down for failure to publish in Federal
Register.

In preparation of litigation. Remember, sometimes a "no record
exists" response is the "smoking gun" you need if you are trying to
prove that an agency acted arbitrarily in some objectionable decision.
For example, if the law requires the government to have considered
certain facts or undertaken a particular action which would necessarily
have left a paper trail, the absence of such a trail can be used as
evidence that the agency failed in the performance of its statutory
duties. We have used this tactic very successfully to paint an agency
into a corner from which they could not escape after litigation began.

The use of FOIA with which most people are aware is to apply it
to obtain agency records for: investigative reporting; obtain records
for historical or academic research; discover evidence for use in
proceedings before an agency or to challenge agency rulemaking; determine
if agency has obtained information through an investigation of requester;
and, to use as an alternative, or supplement, to civil or criminal
discovery.

RECENT AMENDMENTS TO FOIA:
"THE ELECTRONIC FREEDOM OF INFORMATION ACT AMENDMENTS OF 1996"

On October 2, 1996, President Clinton signed into law
"The Electronic Freedom of Information Act Amendments of 1996." The Congressional
findings which accompanied the Amendments set forth a large number of
proud sounding recitations focusing both on past successes of the Act
as well as upon aspirations for the future:

Findings.-- The Congress finds that --

(1) the purpose of section 552 of title 5, United States
Code, popularly known as the Freedom of Information Act, is to require
agencies of the Federal Government to make certain agency information
available for public inspection and copying and to establish and enable
enforcement of the right of any person to obtain access to the records
of such agencies, subject to statutory exemptions, for any public or
private purpose;

(2) since the enactment of the Freedom of Information Act in 1966, and
the amendments enacted in 1974 and 1986, the Freedom of Information
Act has been a valuable means through which any person can learn how
the Federal Government operates;

(3) the Freedom of Information Act has led to the disclosure of waste,
fraud, abuse, and wrongdoing in the Federal Government;

(4) the Freedom of Information Act has led to the identification of
unsafe consumer products, harmful drugs, and serious health hazards;

(5) Government agencies increasingly use computers to conduct agency
business and to store publicly valuable agency records and information;
and

(6) Government agencies should use new technology to enhance public
access to agency records and information.

See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(a)(1996)

Moreover, the "purposes" section of the Amendments presents some very
nice sounding goals for federal agencies:

Purposes.the purposes of this Act are to --

(1) foster democracy by ensuring public access to agency
records and information;

(2) improve public access to agency records and information;

(3) ensure agency compliance with statutory time limits; and

(4) maximize the usefulness of agency records and information collected,
maintained, used, retained, and disseminated by the Federal Government.

See P.L. No. 104-231, 101 Stat. 2422, Sec. 2(b)(1996)

While not legally binding, these recitations make
for nice reading. Moreover, they can help to remind a reviewing judge-should
you be required to file suit-that the agency is supposed to do more
than merely tolerate your presence; your invoking of FOIA is an act
which summons forth some of the most basic principals of our democratic
society, Congress said so. Consequently, always remember to cite these
passages to the government when you are confronted by a less than forthcoming
agency response, they will always look good in the record you are making
for review.

The 1996 FOIA Amendments break down into three general
categories. One, the Amendments impose a number of mandates to enhance
public access to agency records by requiring that agencies provide indexes
to help requesters best craft their requests and to ensure that previously
requested records are available without the filing of a request. Two,
the Amendments enhance the public's ability to obtain records in electronic
format by confirming that records in electronic form are subject to
FOIA. Accordingly, agencies must honor requesters' preference for special
format-if reasonably feasible-and agencies are now required to make
more information available on the internet. And three, the Amendments
slightly extended the deadlines in which to respond to an initial FOIA
request while modifying the procedures for reviewing FOIA requests to
allow for faster processing while requiring agencies to reduce backlogs
and delays.

A summary of the major components of the Amendments is set out below:

Electronic Records -5 U.S.C.§ 552(a)(2)(D)-Records which
are subject to FOIA shall be made available under the Act when the
records are maintained in electronic format. This clarifies existing
practice by making the statute explicit on this point.

Format Requests -5 U.S.C.§ 552(a)(3)(B)-(D)-Requesters may
ask for data in any form or format in which the agency maintains those
records. Agencies must make a "reasonable effort" to comply with requests
to furnish records in other formats.

Redaction -5 U.S.C.§ 552(b)-Agencies redacting electronic
records (deleting part of a record to prevent disclosure of material
covered by an exemption) must note the location and the extent of
any deletions made on a record.

Expedited Processing -5 U.S.C.§ 552(a)(6)(E)-Certain categories
of requesters would receive priority treatment of their requests if
failure to obtain information in a timely manner would pose a significant
harm. The first category of requesters entitled to this special processing
includes those who could reasonable expect that delay could pose an
imminent threat to the life or physical safety of an individual. The
second category includes requests made by a person primarily engaged
in the dissemination of information to the public, and involving compelling
urgency to inform the public. The term "primarily engaged" requires
that information dissemination be the main activity of the requester,
though it need not be their sole occupation. The specified categories
for compelling need are to be narrowly applied.

Multitrack Processing -5 U.S.C.§ 552(a)(6)(D)-Agencies will
be able to establish procedures for processing requests of various
sizes on different tracks. Because of this procedure, larger numbers
of requests for smaller amounts of material will be completed more
quickly. Requesters will also have an incentive to frame narrower
requests.

Deadlines -5 U.S.C.§ 552(a)(6)(A)-The deadline for responding
to a FOIA request is extended to 20 working days from the current
10 working day requirement for initial determinations.

Agency Backlogs -5 U.S.C.§ 552(a)(6)(B)-(C)-Agencies can
no longer delay responding to FOIA requests because of "exceptional
circumstances" simply as a result of predictable request workload.
This strengthens the requirement that agencies respond to requests
on time. This single provision has the potential to have the greatest
impact upon FOIA requests and litigation. Of a total of 75 agencies
responding to a Department of Justice request for backlog information
in February 1994, only 28 agencies could report that they had no backlog.
Agencies have consistently failed to comply with FOIA's response deadline,
and courts have allowed this. Congress has seemingly tried to put
some teeth into the newly expanded 20 day response deadline by explicitly
limiting the basis by which an agency can excuse a delay in the processing
of a FOIA request.

These amendments, because there has been little opportunity
for reviewing courts to evaluate them, present an unknown commodity to
the FOIA requester. Historically, the courts have shown a willingness
to extend a sympathetic ear to agency complaints of "exceptional circumstances"
as justification for delinquent responses to FOIA requests. It remains
to be seen how the courts will now receive such complaints. Additionally,
the mechanisms to manipulate and release electronic data in its original
format presents the potential to significantly speed release of the requested
materials while also allowing a requester access to data which can be
more easily searched and manipulated than paper. On the whole, these changes
present the promise to make the FOIA progressively more responsive to
the public; we shall see in the fullness of time.